In the case of Wiley v. ESG Sec., Inc., plaintiff, Seth Wiley, was attending a concert in Indianapolis. The concert venue had an audio message repeatedly playing during the evening events advising patrons in part: “please note: moshing and crowd surfing is strictly prohibited. Due to the nature of moshing/crowd surfing, injuries can occur. Patrons who engage in moshing and/or crowd surfing do so at their own risk and are subject to rejection from the venue.”

Despite these warnings, Wiley, who was a minor at the time, engaged in crowd surfing. Wiley previously crowd surfed that night 3 or 4 times, all which came to an end when he was helped down to the ground by security at the front of the audience. On Wiley’s final crowd surfing attempt, however, security was busy somewhere else, and Wiley fell and was injured as a result when he reached the front of the audience.

Wiley sued the venue along with the security company for negligence and the defendant filed a motion for summary judgment arguing that it did not owe a duty to the plaintiff and that plaintiff had incurred the risk of his injuries. The trial court entered summary judgment denying the motion for summary judgment on the issue of duty but granted summary judgment on the issue of incurred risk and entered a final judgment in defendant’s favor. The plaintiff appealed.

The Court of Appeals noted that the plaintiff had designated evidence that defendant knew from prior experience with similar concerts that patrons would crowd surf despite written and audio warnings. Based on one defendant’s experience, it had recommended to the venue that two additional staff be positioned near the barricade at the front of the stage area that night. The Court of Appeals found that the record presented genuine issues of material fact as to whether the defendant assumed a duty of reasonable care to Wiley and those who crowd surfed at the concert.

The defendant argued that because Wiley knew the risks and engaged in the activity despite such knowledge, Wiley assumed the risk of his activities and any duty that was owed was negated. The Court of Appeals reviewed Martin v. Hayduk, 91 N.E.3d 601 (Ind. Ct. App. 2017) and explained that under the Comparative Fault Act, which defines “fault” to include “unreasonable assumption of risk not constituting an enforceable express consent” and “incurred risk,” an incurred risk cannot be a basis to find the absence of a duty, except in the case of a plaintiff’s express consent. Therefore, the Court of Appeals reversed the trial court’s summary judgment and remanded the matter for a jury to determine whether the defendant had assumed a duty and for resolution of several remaining issues.

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